Divorce Hadith Style Lucas

8/6/2019 Divorce Hadith Style Lucas

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DIVORCE, EADITH-SCHOLAR STYLE: FROM

AL-D2RIMI TO AL-TIRMIDHI

S C O T T C . L U C A SUniversity of Arizona

How did the major third/ninth century Aad;th scholars articulate Islamiclaw? Until recently, the majority of both traditional Muslim scholars andWestern-trained academics have devoted greater attention to thecontents of the canonical Aad;th books than to the legal hermeneutics

of these books individual compilers. Despite the existence of importantstudies on third/ninth century Aad;th-scholar jurisprudence by N


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of Sunni Aad;ths. I selected the following six books: 1) 6Abd All:hb. 6Abd al-RaAm:n al-D:rim;s (d. 255/869) Sunan4 (often calledMusnad); 2) MuAammad b. Ism:6;l al-Bukh:r;s al-J:mi6 al-BaA;A;5

3) Muslim b. al-Eajj:js 4aA;A;6 4) Ibn M:jas (d. 273/887) Sunan;7

5) Ab< D:w


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I do not consider any chapters that are not explicitly concerned withlegal topics pertaining to the termination of a marriage contract. Thisqualification also led me to disregard chapters on topics related tofornication,10 occasions for the revelation of certain Qur8:nic verses,11

and even al-Bukh:r;s recommendation (based on a statement attributedto Ibn 6Umar) against marrying non-Muslim women.12

My second task was to group the chapters into coherent legal topics inorder to identify the breadth of Aad;th-scholar jurisprudence. Althoughthere are certain legal topics that appear regularly in all fiqh books, thereis no standard system of organization and one can always argue thatcertain legal topics should be parsed into multiple ones. Therefore, the45 topics into which I have classified the legal material pertaining todivorce in these Aad;th books are somewhat arbitrary, just as the

chapters of any fiqh book must be.13

Complications arose when Irealized that several Aad;th scholars place divorce-related topics outsideof the Book on Divorce. For example, Muslim has a distinct Bookon Li6:n (mutual imprecation) immediately following the Book onDivorce, and al-D:rim; has a chapter on li6:n in his Book on Marriage.Likewise, Ibn M:ja and al-Tirmidh; discuss child custody in their Bookson Rulings (aAk:m) and the impact on the marriage contract ofa spouses conversion to Islam in their Books on Marriage. In lightof this complex situation, I decided to include in my analysis the contents

of divorce chapters outside the narrow confines of the Book on Divorceonly if they were in unambiguously legal books; in practical terms, thismeans I did not consider material in the Book on Qur8:nic exegesis(tafs;r) in the works of al-Bukh:r;, Muslim and al-Tirmidh;, or Aad;thslocated in the ethical, historical, and theological books in any of the sixcompilations under study.

Once I had determined the precise portions of these six Aad;th booksthat merited inclusion in this project, I could proceed with my analysis.The first stage consisted of reviewing early legal books, such as the

Muwa33a8s of M:lik b. Anas (d. 179/795) and MuAammad b. al-Easanal-Shayb:n; (d. 189/805), the MuBannafs of 6Abd al-Razz:q al-4an6:n;(d. 211/827) and Ab< Bakr ibn Ab; Shayba (d. 235/849), and theMudawwana of SaAn


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topics pertaining to divorce were in circulation during the third/ninthcentury. The second stage was largely empirical, identifying which topicsappeared in the six Aad;th books and their respective frequencies in them.The final stage involved determining which transmitted materialssound

Aad;ths, weak Aad;ths, and post-prophetic reportseach Aad;th scholarincluded in his chapters. This stage required close textual analysis, whichin turn illuminated the individual hermeneutics of each compiler.14

DIVORCE IN THE LEGAL DISCOURSE OF THETHIRD/NINTH CENTURY

Al-D:rim; and his contemporary Aad;th scholars composed their books

after more than a century of legal writing and argumentation hadelapsed. For example, Ibn Ab; Shayba, a major source of transmittedmaterials for both Muslim and Ibn M:ja, discusses 281 topics in hisBook on Divorce in his massive MuBannaf. A generation earlier, theYemeni 6Abd al-Razz:q covered over 250 divorce-related issues in hisequally voluminous MuBannaf. Susan Spectorsky, in the introduction toher translation of the legal opinions on marriage and divorce of IbnEanbal (d. 241/855) and Ibn R:hawayh (d. 238/853), identifies thefollowing seven broad categories into which most divorce topics fall:

1. Divorce proper (3al:q), especially statements that effect a divorce;15

2. The Cih:r oath;16

3. The oath of sexual abstinence (;l:8);17

4. The procedure of mutual imprecation (li6:n);18

5. The act of granting the woman the choice to divorce (takhy;r, khiy:r);19

14 N


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6. The female-initiated divorce (khul6);20

7. The waiting period (6idda);21

This framework works very well with most of the early fiqh books thathave survived. YaAy: al-Layth;s recension of M:liks Muwa33a8 has atleast two chapters on all seven of these categories, while the recensionof al-Shayb:n; covers all of them except the Cih:r oath.22 Al-Shayb:n;sbook, al-J:mi6 al-Bagh;r, covers all of these categories in some depth, withthe exception of mutual imprecation, and devotes special attention to adizzying array of divorce statements.23 Most of the chapters on divorcein the aforementioned MuBannafs of 6Abd al-Razz:q and Ibn Ab;Shayba, along with SaAn


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This study demonstrates that the Aad;th scholars from al-D:rim; toal-Tirmidh; were well aware of the major legal debates that had beenbrewing since the second/eighth century. Despite this general awareness,there were several contentious topics among the early jurists that none

of the Aad;th scholars under consideration, with the exception ofal-Bukh:r;, broached in their books. These topics include the validity ofconditional divorce statements, the effect on inheritance of the man whodivorces his wife during his terminal illness, and the right of a womanwhose husband has gone missing (al-mafq


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herself from an additional period of menstruation after the one duringwhich he initially divorced her. This story is further complicated by thequestion as to whether the inappropriate divorce attempted by Ibn 6Umarcounted as one of the two Qur8:nically-permitted revocable divorces.

In his Sunan, Ab< D:w


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between the jurists, like al-Sh:fi6; (d. 204/820) and Ibn Eanbal, who areof the opinion that the sunna divorce encompasses a triple divorce in onesetting, versus the opinion of Sufy:n al-Thawr; (d. 161/778) and IbnR:hawayh that restricts the sunna divorce to a single utterance of

divorce in any period during which the wife is free from menstruation.32

Neither al-D:rim; nor Ab< D:w


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subsequently married 6Abd al-RaAm:n b. al-Zubayr al-QuraC;. Rif:6asex-wife, whose name is never mentioned in the Aad;ths, went to theProphet and, in several versions, complained that her new husbandsmanhood was akin to an eyelash or thread (hudba).37 The Prophet

surmised that she wished to return to the more satisfactory Rif:6a andinformed her that she could not lawfully remarry him until her newhusband had tasted her sweet honey (6usayla) and, in some versions, shehad tasted his sweet honey.38 The story ends abruptly with thiseuphemistic prophetic statement.

In addition to casting an embarrassing light upon the anatomy ofa certain 6Abd al-RaAm:n b. al-Zubayr, the story of Rif:6as ex-wifeclarified the meaning of the Qur8:nic verse that requires the woman whohas been divorced three times to marry another man and be divorced by

him prior to remarrying her original husband.39

Theoretically, a womancould be divorced prior to consummation, since the verb 3allaqa isemployed in this manner in Qur8:n 2. 2367. This memorable propheticlocution cemented the requirement of consummation with the newhusband prior to the remarriage with the original one and al-Tirmidh;reports in the Book on Marriage that this is the practice of the generalmass of Companions and subsequent scholars.40

3 The Rights of the irrevocably divorced woman during her waiting

period: The story of F:3ima bint Qays peculiar waiting period41

The story of F:3ima bint Qays (d. before 60/679) divorce hasproduced the most conflicted interpretations of any of the Aad;ths

37 In the version from 628isha 6Urwa al-Zuhr;, Ab< Bakr was with theProphet and Kh:lid b. Sa6;d overheard the conversation outside the door ofthe Prophets residence. Kh:lid remarked with astonishment, Can you believewhat was said out loud in the Messenger of Gods presence! Sunan al-D:rim;,ii. 7 (3al:q: 4); 4aA;A Muslim, x. 3 (nik:A: 17).

38 al-Bukh:r; has the longer version as, la6allaki tur;d;n an tarji6; il: Rif:6a?l: Aatt: yadh


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under discussion.42 The basic story is that F:3imas husband, identified insome narrations as Ab< 6Amr b. EafB, divorced her irrevocably (triply)from afar and refused to provide her with either lodging (sukn:) ormaintenance (nafaqa) during her waiting period. F:3ima informed the

Prophet of this situation, to which he purportedly replied that she wasentitled to neither maintenance nor lodging, and, in some versions,ordered her to spend her waiting period in the house of the blindEmigrant Ibn Umm Makt


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depicted as being skeptical as to its validity.47 A common formulation of6Umars attitude toward this story is his statement, We do not abandonthe Book of God and the sunna of his Prophet on the basis of anutterance from a woman!48 6Umars reference to the Book of God is

most likely an allusion to Qur8:n 65. 1, which states that women cannotbe evicted from their homes during their waiting periods unless theycommit a flagrant indecency.

The impact of F:3imas report and its rejection by several prominentearly religious authorities divided both jurists and Aad;th scholars overthe correct ruling concerning the rights of the triply divorced womanduring her waiting period. Al-Tirmidh; clearly presents the three majoropinions in the following manner:

Some scholars, such as al-Easan al-BaBr; (d. 110/728), 6A3:8 b. Ab; Rab:A

(d. 114/732 or 115/733), al-Sha6b; (d. between 103/721 and 110/728), Ibn

Eanbal, and Ibn R:hawayh are of the opinion that the divorced women receives

neither lodging nor maintenance if the husband does not possess the right to take

her back (raj6a).

Some of the Companions of the Prophet, including 6Umar and Ibn Mas6


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Interestingly, al-D:rim; and Ibn M:ja support the first positionoutlined by al-Tirmidh;, al-Bukh:r; champions the second one, andMuslim adopts the third one.52 Al-Bukh:r; is the only Aad;th scholarunder consideration who refuses to include a single Aad;th in which

F:3ima actually utters the prophetic decision that denies her lodging ormaintenance; rather, he cites Qur8:n 65. 1 and 65. 6,53 along with fivevery different versions of 628ishas rejection of the implications ofF:3imas statement.54 Al-Bukh:r;s own opinion, that the divorcedwoman cannot relocate during her waiting period even if it is fearedthat the husbands residence will become hateful to her or she willverbally abuse her [alternate: his] household, can be derived from thetitle of the forty-second chapter of his 4aA;A.55

The story of F:3ima bint Qays and its ensuing controversy provide a

useful window into the legal hermeneutics of the six Aad;th scholarsunder consideration. In the showdown between F:3imas propheticAad;th and the critical remarks of 6Umar and 628isha, al-D:rim; and IbnM:ja side with F:3ima, while al-Tirmidh; refuses to take sides andmerely relates the three positions adopted by a handful of his illustriouspredecessors. Al-Bukh:r; cites neither F:3imas Aad;th, nor 6Umarscriticism, and instead elevates 628ishas opinion to the highest authorityon this issue, even though she did not claim to be basing her opinionovertly on a prophetic teaching. Both Muslim and Ab< D:w


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receive maintenance.56 This case study demonstrates that all six scholarsimmersed themselves in the legal issues associated with the multiplenarrations of F:3ima bint Qays story, and that four of them evenadopted precise positions on the topic of the triply-divorced womans

rights during her waiting period.

4 Does childbirth always terminate a womans waiting period? Thestory of Subay6as brief waiting period57

Unlike the irreconcilable legal opinions that emerged from F:3imabint Qays story, the tale of Subay6a bint al-E:rith al-Aslamiyya58

provided a solution to a problem upon which Muslim jurists ultimatelyachieved consensus. One version of the story begins with a debate

between Ibn 6Abb:s (d. 68/6878), Ab< Salama b. 6Abd al-RaAm:n(d. 94/7123 or 104/7223), and Ab< Hurayra (d. between 57/6767and 59/6789) over whether a pregnant widows waiting periodends at the time of childbirth if the child is born shortly after thehusbands death, or whether the widow is required to observe thefull four months and ten days prescribed in Qur8:n 2. 234. Ab

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